Steyn: Obvious mistake
A libel claimant cannot rely on a document inadvertently disclosed by the defendant’s solicitor in what the High Court called “an absolutely paradigm case of a clear and obvious mistake”.
Mrs Justice Steyn said that the litigant in person “did not need to be a solicitor” to know that internal comments on a document “were not intended to be disclosed to her”.
Certifying her application for permission to rely on the inadvertently disclosed statement as “totally without merit”, Steyn J said: “The general rule is that where privileged documents have been inadvertently disclosed, and the mistake is obvious, lawyers on both sides should co-operate to resolve the matter as soon as possible.
“Both parties are subject to a duty of honesty and it should not be necessary for such matters to be resolved by the court.”
The case law says that one category where the court can intervene to prevent the use of documents made available for inspection by mistake is where it was “as a result of an obvious mistake”.
The judge said that although the claimant was unrepresented, she “knew that the document had been inadvertently disclosed”, which was “rapidly drawn to her attention”.
The underlying claim by a Ms Picker concerns two emails sent by the anonymised defendant ‘TEW’ to university staff in August 2022 in support of TEW’s application for a ‘no contact’ agreement. The emails contained an allegation of sexual assault by Ms Picker.
On 30 December 2025, TEW’s solicitors inadvertently disclosed a draft version of a document called the ‘publication table’. This contained, in four comment boxes, “an exchange of comments” between the lead partner and the defendant’s counsel.
The solicitor spotted the error on her next working day, 2 January 2026. She wrote to Ms Picken to explain, asked her to disregard the attachment, delete it and confirm that she had done so, and provided the finalised version.
Ms Picker “declined to delete or disregard” the draft. Instead, she made an application to rely on it under CPR 31.20.
The solicitor explained how the error occurred. “She ‘resolved” the comments, which had the effect that the Word version of the document appeared to be clean before she turned the document into a PDF prior to sending it to the claimant. However, resolving the comments did not in fact delete them and they were then visible on the PDF version.”
Steyn J said that although the claimant was “not a solicitor, she is not represented or legally trained, it was in fact obvious to her” that the privileged comments were disclosed in error.
Ms Picker argued that the court should exercise its discretion to allow her to rely it, saying the disclosed comments were “critical as demonstrating the changing and vague position taken by the defendant in relation to the allegation”.
She argued that the court “should treat the inadvertent disclosure as a waiver which ought then to be regarded as extending further than simply the comments which were in fact disclosed”.
Steyn J said it was “clear that the marginal comments are of no particular importance or relevance to the case”, but were “benign comments” in which newly instructed counsel sought “clarification of certain matters”
There was nothing in them that “could conceivably warrant a waiver of privilege”.
The judge refused Ms Picker’s application and certified it as totally without merit.
She also certified a further application from Ms Picker for costs capping as totally without merit.
Steyn J decided not to impose a civil restraint order, which she was required to consider having certified the two applications, so Ms Picker “has the opportunity to learn from the orders that have been made”.
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